The Viacom complaint, filed in the US District Court for the Southern District of New York, rests on Section 106 of the Copyright Act. Viacom claims three counts of direct copyright infringement (public performance, public display, reproduction), inducement to infringement, contributory infringement, and vicarious infringement. Viacom isn’t being shy in seeking redress:
Plaintiffs seek a declaration that Defendant’s conduct wilfully infringes Plaintiffs’ copyrights, a permanent injunction requiring Defendants to employ reasonable methodologies to prevent or limit infringement of Plaintiff’s copyrights, and statutory damages for Defendant’s past and present wilfull infringement, or actual damages plus profits, of at least one billion dollars.
Several issues raised by the complaint piqued my interest. Assuming Google doesn’t settle with Viacom:
- Proving damages – Did all of that exposure on YouTube hurt Viacom businesses that much? Have the viral marketing techniques pioneered by YouTube helped to create awareness of content that viewers might not otherwise have even known about? If there were no YouTube, would Jon Stewart and Stephen Colbert (Viacom owns Comedy Central, home base to these two YouTube favorites) be household names? Maybe, maybe not. As Steve Bryant points out, there are more questions than answers about the impact of YouTube on traditional media outlets.
- YouTube’s business plan – Viacom asserts that “the presence of infringing copyrighted material on YouTube is fully intended by Defendants as a critical part of their business plan to drive traffic and increase YouTube’s network, market share and enterprise value… .” Viacom seems to know more about the YouTube business plan than most business observers, who have long wondered exactly how YouTube planned to convert all of those eyeballs into cash.
- $1.65 billion – This number shows up six times in the complaint. Yes, Google paid $1.65 billion for YouTube. Does that mean YouTube was worth that much? How much is Google making (directly or indirectly) from YouTube? Before getting snapped up, YouTube was a runaway hit with users, but it was still searching for a business model.
- “Reasonable methodologies” – What technical means of detecting copyrighted material are reasonable? Viacom argues that YouTube has made it difficult to search for infringing uses, but how far should YouTube go to serve as a copyright enforcement proxy of Viacom? Viacom claims that YouTube has deliberately put up obstacles that make it more difficult to police content. Will the DMCA Safe Harbor be found wanting, or will it stand up to this frontal assault?
- Betamax redux? – Is there room for a Betamax non-infringing use analysis here? A quick look at today’s most popular videos on YouTube reveals a broad range of content, some of it obviously infringing, but just as much if not more user-created.
- The licensing game – The most intruging component of Viacom’s complaint is the assertion that Google has used infringement filtering as a weapon in licensing negotiations. Viacom claims YouTube’s “failure to take reasonable measures to prevent infringement of Plaintiff’s copyrights stands in stark contrast to the protection which You Tube offers for the content to which it has acquired licenses through various business partnerships with other copyright holders.” According to Viacom, “YouTube attempts to coerce copyright owners to grant it a license in order to receive the protection to which they are entitled under the copyright laws.”